Review of the ecclesiastical court judgments during January 2019
This January, an above average number of interesting or important consistory court judgments have been published. Consequently, our round-up this month is in two parts: this post which considers reordering, extensions & other building works and Part 2 which reviews exhumation, churchyards and burials, and include links to recent CFCE determinations and to other posts relating to ecclesiastical law.
While not achieving the national prominence of the AA case, other notable aspects of the judgments this month judgments: a reminder to incumbent and congregation that they are temporary custodians only of church buildings and assets and a pragmatic conclusion to the vexed question of Alpha SB2M vs Theo vs Howe 40/4 chairs in the context of a church within the HTB network.
Readers familiar with the 397-page judgment Re Christ Church Spitalfields  will be relieved that the consideration of its findings by the Arches Court in Re Christ Church Spitalfields  is a mere 38 pages in length. The present post reiterated the helpful summary by Ray Hemingray of the Ecclesiastical Law Association; a more detailed review will follow.
- Substantial reordering
- Reordering and alternative uses
- Other building works, including re-roofing
- Removal and replacement of pews &c
Re Christ Church Fulwood  ECC She 3 The petitioners sought further extensive reordering of the Grade II church, with the creation of a link between the church and the church centre. These proposed works constituted Phase II of an extensive programme of alteration and development for the buildings. Phase I was considered in Re Christ Church Fulwood ( ECC She 6). The most controversial issue for the instant petition was the proposal to place a curtain wall behind the three arches at the front of the nave, and to create within the then enclosed chancel (designed by the well-known church architect George Pace) a meeting room, an office and storage area on three floor levels.
Chancellor Singleton QC observed :
“The argument that church buildings are subservient to their purpose and, therefore, the assertions of the Petitioners as to their needs for worship and mission must overcome conservation considerations, conflicts with the principle upheld by the law that churches and church buildings are national assets and that the present incumbent and congregation are temporary custodians only. The tension of that conflict is one that has been considered and played out over many years in the reported cases. The Duffield decision and questions are the ultimate iteration of the route to resolution of that conflict in accordance with the established law”.
She considered that the proposal would harm the special character of the building and that the petitioners should consider alternatively ways of finding the meeting, office and storage space they required. A faculty was granted for most of the proposals, but excluded those relating to the chancel. Re Christ Church Fulwood ( ECC She 6 required the then petitioners to seek an alternative church for the church’s existing pipe organ which they proposed to remove as part of their re-ordering plans. This would have been a “very preferable outcome” for this instrument, for although not used or valued by the church leaders and congregation at Christ Church, it is, nonetheless, a church treasure, with particular connection to the Diocese. However, the petitioners were unable to satisfy the court’s requirements, and the removal and disposal of the organ was approved. [Re Christ Church Fulwood  ECC She 3] [Back] [Top]
Re Kingston upon Hull St. Nicholas  ECC Yor 2 A faculty was sought for a number of modifications to an unlisted church, built in 1969-1970, including: replacement of the existing twenty pews with one hundred and twenty Alpha SB2M chairs and four stacking trollies; a data projector to the front archway; an overhead retractable screen to the wall above the reredos; a lighting bar and stage lights to the front archway; replacement of the existing sound desk housing with a larger housing to accommodate additional equipment. Canon Peter Collier QC commented:
“. What is proposed is unremarkable. The church is unlisted. It was built in 1969-70 replacing the original 1915 church. It is described in Pevsner as being “an undistinguished building incorporating furnishings from the former church including reredos of 1931 and stained glass”. The pews have no significance. Their replacement with chairs would result in no loss or harm and would provide flexibility both for worship and other activities. The introduction of the audio visual equipment is now regarded as almost a necessity in a church. Even when extended the screen will not cover the reredos. It is therefore as unobtrusive as it could be”.
Two parishioners wrote a letter of objection, but did not become parties opponent. They claimed that there had been insufficient consultation in the parish and that the audio-visual equipment had already been installed. The Chancellor was satisfied that there had been adequate consultation and that the petitioners had made out a good case for the works. As for part of the works being completed already, the Chancellor accepted the explanation [10, 11] and apology given by the petitioners. A faculty was granted in respect of all the works. [Re Kingston upon Hull St. Nicholas  ECC Yor 2] [Back] [Top].
Re St. Saviour Westgate-on-Sea  ECC Can 2 The Commissary General granted a faculty to a revised petition seeking the replacement the existing cupboard, worktop, sink, tap and water heater in the Vestry. Initial petition had included connection of services to sewer at a cost in excess of £61,000. Amended petition, accompanied by revised petitioners, satisfied objections raised. [Re St. Saviour Westgate-on-Sea  ECC Can 2] [Back] [Top]
Re St. Peter Chailey  ECC Chi 2 This petition concerned the second phase of the reordering of a Grade II* church. Phase 1, implemented pursuant to a faculty granted in 2014, entailed the removal of some pews and the installation of a new kitchen and lavatory. The instant petition proposed the formation of a new meeting room/children’s area, enclosed by timber and glass; removal of some pews in the nave, the nave aisle and the south aisle, and their replacement with chairs; lowering the raised pew platforms in these areas; disposal of a timber screen to the St. John’s Chapel; and alterations to heating and electrical systems, including the replacement of the existing boiler with a new oil fired boiler [5 to 10].
There was one party opponent who objected to the removal of some of the pews and to the meeting room. His participation in the proceedings is detailed in paragraphs [11 to 15] and the subsequent proceedings are described in paragraphs [16 to 24]. Viewing the petitioners’ justification in the round, and giving weight to the views of Historic England, the Victorian Society and the DAC, Deputy Chancellor Robin Hopkins was satisfied that the justification for the proposals outweighs the degree of harm they would cause. He considered that notwithstanding the presumption against causing such harm, the overall balance tips in the petitioners’ favour. The proposals are likely to deliver sufficient public good to outweigh this degree of harm.
With regard to costs, the Deputy Chancellor stated that there was no dispute as to his jurisdiction to make a costs order, by virtue of section 63 of the Ecclesiastical Jurisdiction Measure 1963. The issues were (i) the extent (if any) to which party opponent has conducted himself unreasonably, and (ii) how, if at all, any such unreasonableness should sound in an order for costs. There were considered in detail in paragraphs 53 and 54 respectively. With regard to the latter, assessing matters as a whole, he found and ordered as follows:
(1) The petitioners are to pay all of the Court costs with their petition and these proceedings.
(2) Within 21 days of the petitioners’ payment of those costs, [the party opponent] is to reimburse the petitioners as follows.
(3) The petitioners are liable in full for the Court costs that would have been payable had the petition been dealt with by way of written objections only, without proceeding to an oral hearing.
(4) [The party opponent] is liable for 50% of the incremental Court costs attributable to the progression of this matter to an oral hearing. This is because of my findings as to his motivation for seeking an oral hearing, his failure to comply with the Court’s directions, his reliance on irrelevant issues and his adoption of a stance that effectively precluded compromise without an oral hearing.
(5) [The party opponent] is also liable for 50% of the petitioners’ inter partes costs, namely their counsel’s fees. This is for similar reasons to those given at subparagraph (4). An oral hearing (and thus counsel’s fees) might have been required in any event, but [party opponents’] stance] effectively guaranteed this outcome. In addition, his failure to comply with the Court’s directions and his persistence with irrelevant issues expanded the work required of the petitioners and their counsel to a significant extent.
Re Christ Church Spitalfields  EACC 1 “In 2012/13 a building (“the Nursery”) was erected on part of the disused, but still consecrated, churchyard to the south-east of Christ Church, Spitalfields, in the Diocese of London. The Nursery was erected unlawfully, in contravention of section 3 of the Disused Burial Grounds Act 1884, which prohibits the erection of buildings in consecrated churchyards. In December 2017 the acting Deputy Chancellor of the Diocese of London issued a confirmatory faculty in respect of the Nursery, and refused to make a restoration order requiring the demolition of the Nursery. She also held that Spitalfields Open Space Limited did not have a sufficient interest to take part in the legal proceedings. On an appeal to the Court of Arches, the Court determined that: (1) Spitalfields Open Space Limited had a sufficient interest; (2) the Consistory Court had not had the power to grant a confirmatory faculty; (3) an application by a Mr. Ouvry to intervene in the appeal should be refused; (4) it was appropriate to make a restoration order, requiring the demolition of the Nursery. (5) to allow time for the occupants of the Nursery to relocate, the restoration of the site need not be completed until 1 February 2029”.
A separate post will review this case in greater detail.
Re Holy Trinity Sittingbourne  ECC Can 1* Deputy Commissary General dismissed the petition for replacement of pews with metal-framed upholstered chairs: the bulk of the hoped-for benefits of the scheme could be met by something less than the complete removal of the pews. [Re Holy Trinity Sittingbourne  ECC Can 1] [Back] [Top]
A faculty was sought for the reordering and alteration to the interior of this Grade II* church, which from November 2014 has been under the leadership of a team from St Peter’s, Brighton, part of the Holy Trinity Brompton network . Since then a more modern style of worship had been adopted and the congregation had grown. The only point of contention was the type of chair chosen to replace the pews. The petitioners favoured the Alpha SB2M chair, which is a stackable, metal chair with a chrome finish and an upholstered seat and back. The Victorian Society objected to the proposed and became a party opponent. Originally, they felt that a wooden, un-upholstered chair such as the “Theo” chair (a wooden chair that could be stained to a suitable shade) or the “Howe 40/4” (which has a metal frame but no upholstery) would be more appropriate.
However, after further correspondence they accepted that in the particular context of a church which had been revived by modern forms of worship and other events in the church, the Alpha chair would be acceptable. This was also the view of the Deputy Chancellor, who granted a faculty for all the items, subject to two agreed amendments.
The Victorian Society asked the Deputy Chancellor to consider making any grant of faculty conditional upon the church being open to the public on a daily basis during normal opening hours, a suggestion which “in principle why this should not be considered” . However, he commented:
“While I have inclined against imposing the requested condition, I very much hope that the petitioners will take active steps to maximise – and publicise (for example on the church’s website) – the times at which this important building and place of worship will generally be open to the public” 
- Clicking on “Top” will return the view to the groups in the main menu, above;
- Clicking on “Back” will return the view to the sub-headings within each of these groups.
- Clicking on the neutral citation in the title will link to the L&RUK summary of the case.
- “Link to ELA judgment” provides a link to the relevant category of judgment on the website of the Ecclesiastical Law Association;
- “Link to post” is used where there is a stand-alone post on the general issues raised in the judgment.
Links to the Ecclesiastical Law Association web site
At the end of 2018, the ELA web site was rebuilt using a more up-to-date framework; however, one consequence was that it is no longer practicable for us to include direct links to the site; from September 2018, therefore, the L&RUK site has held copies of all new judgments reviewed; for cases prior to this date, these can be accessed directly from the ELA web site.
Citation of judgments
As from 1 January 2016, judgments in the ecclesiastical courts have been allocated a neutral citation number under the scheme described in Practice Note No 1 of 2015 and Practice Note No 1 of 2016. In addition, it was necessary to assign a neutral citation for the Diocese of Sodor and Man, here. The Diocese was deliberately excluded from the list of neutral citations in the earlier Practice Directions on citation because it is not part of England.
The photographs used in this post do not necessarily relate to the cases discussed.